The Bismarck Tribune Newspaper, November 3, 1919, Page 5

MONDAY, NOVEMBER 3, 1919 BISMARCK DAILY TRIBUNE When you have a Victrola to play for you and can dance whenever you want. . Come in and hear the SOUSA’S BAND CAPTIVATED AUDIENCE SATURDAY NIGHT WITH A BRILLIANT PROGRAM OF OLD AND NEW SELECTIONS “Showing Off Before Company” Is Big Hit of Evening, with Some of the Latest Composi- tions Rivaling: Those Popular for Years Offering a program containing many of his latest composition liberally sprinkled with his older marches, John Philip Sousa and his band of 65 ar- sts captivated musical Bismarck Sat- at the evening concert at the auditorium, From the moment Deut, Sousa ap- reared on the stage ‘to the Star Spangled Banner which terminated the concert, it was distinctly a Sousa night. The many numbers easily merited the continuous applause they received from the appreciative audience, “Showing Off Before Company,” a mixture arranged by Sousa, was one of the brightest offerings ever developed for band work. . It opened the second part of the program, bringing back on the stage in groups the various in- struments composing the bands, giving each individual member an opportun- ity to ‘show off before company.” Very cleverly arranged, it was the distinc- tive hit of the evening, Stepping down for a moment from his newest dance music on the Victrola HOSKINS Victrola Department throne as ‘March King” Sousa has com- posed what should be known as “Am- erica’s Funeral March” which he has named “The Golden Star.” Dedicated to Mrs. Theodore Roosevelt it is a Chop- inesque musical interpretation of the anguish which wracked many a inother’s heart in this ocantry. because of son’s death overseas, Sousa makes good use of the flexibility and range of the various instruments and thru the subtle development of contrasts brings out a mother’s sorrow and agony then her joy and praise at knowing | her son tho, dead died as a true Am- erican should die—for his country, ARTILLERY MARCH Of his newest creations, “The Field Artillery March” undoubtedly was the! most popular with Saturday night’s audience. This should in time join that select circle such as “Stars and “ phone in Sousa’s band and the other , Was Robert Bruce: of Selfridge, the s whs ‘full back on the Carlisle team MUSICAL INDIANS HELD REUNION IN CITY LAST WEEK| Two Indians, musicians of great abil- ity, met Saturday after a separation of many years. One of the Indians, John Kuhn, played the’ huge Sousa- wan who launched ‘Kuhn on: his profes- sional career with the Philadelphia Philharmonic Band when Kuhn but, 18. years old. oD | Kuhn-and Bruce are both Sioux In- dians and ; they-dirst -met. at» Ca! indian school several years ago. Kuhn o | { ROBERT BRUCE, __ Standing Rock Sioux Band Director, Soloist and Composer, who Met Famous Protegt With Sousa’s Band while Bruce was in the school band. Standing on the corner of Broadway and Fourth street Saturday shortly be- ture the matinee concert of Sousa’s band, Kuhn saw a man hobbling across the street as fast as his wounded body would permit, with right hand out- stretched. It was Bruce, who had made the trip from Fort Yaies particu- larly to meet his old college chum and talk over the days when they both ap- peared in bands together. The.two Sioux had a Jong visit and it was a sorrowful Bruce that stood on the station as the train bearing Kuhn pd the other members cf tie band Ge- parted in thie west Kuhn has been with Sousa for three seasons, and Lieut, Sousa says that the big Sioux is undoubtedly the most accomplished performer on the huge Sousaphone of any in the country, This instrument was invented by Mr. Sousa several years ago and has become an important. part of every ~ prominent band. It has a yery deep tone, being the bass of the brass instruments, Bruce and Kuhn have played to- gether in the United States marine band, Kryll’s Ennis’s and other famous organizations, They were offered a nice contract for: this’ winter in vaude- ville, but Kuhn ‘is} tied up with the Sousa organization for two years, Bruce formerly was leader of the standing Rock barid at Fort Yates. He also directed the Fort Peck band at Poplar, Mont; Jo him was given the honor of playing the “Inflammatus” for President McKinley upon. the cele- bration of Longfellow’s: birthday an- niversary in 1901,’only a short time be- fore McKinley was assassinated. In addition. to. being rated,as one of the best leadérs and euphonium and trombone soloists in the country, Bruce is a composer of. merit, and his “Sioux County Pioneer Maret” hag had a wide distribution. Stripes.” “El Capitan,” “King Cotton,” and others of Sousa’s older marches. Another Jate composition which met with instant favor was “Bullets and Bayonets,” i Miss Florence Hardeman, the violin soloist, was wonderful in her artistry and showed a technique that is very seldom equalled in her “Witches Dance.” by one false note inthis difficult finger- ing, Miss Hardeman swept thru the- composition with a sureness and per- fection that captivated. Her recond tion. of. Vieuxtemps’ “Polonaise Bril- lante” Was excellent and her second encore was the “Souvenir” with harp accompaniment. Miss Mary Baker, singing ‘“Moon- light and Starlight,” gave a_ brilliant performance showing with what ms yelous control her voice is trained. Miss Eaker sang two of. Sousa’s song hits, “Fanny” and ‘Our Boys Are Home Again.” COMPOSED 300 PIECES Many people in the audience were compose , sengs as Well as marches, but they do: surprised at Sousa should not know that altho he is best-known as the “March King,” Lieut. Soust is really one of the mbst prolific com- posers in America, With over 3800 compositions to his credit, the big m™& jority of them equal to his more favor- ‘ebly known marches, Sousa has tried his hand in almost every department of musical composition, For instance there are ten operas which, bear Mr, Sousa’ name, some of them, such as “Fl Capitan,” having been extremely successful, The march ly that name is a pagf of that opera. Altho his father was very musical, 2 member of the marine band of Wash- ington, Lieut. Sousa is net a beliver in hereditary influences in the work of an artist, “My father never intended mak- ing music his profession,” said M Sousa during the interval Saturday night, ‘he was. driven into it because he could find nothing else to do to pro- vide for his family.” The “March King’s father was a player of the trombone and the ‘cello, tut on neither instrument, says Lieut. Sousa, was the elder Sousa especially eccomplished, Because he is not a believer in hereditary influencing the next generations, Lieut. Sousa is not so sure that his grandson, who is more interesting to America’s favorite band director than the applause his compositions receive, will not become a better bridge builder than a musi- cian, BELIEVER IN INSPIRATION Mr. Sousa is equally interesting on the subject of inspiration of which he is a firm believer. When asked if he found it very difficult to compose his earlier numbers, Lieut. Sousa said: “When I am writing a-new march, or other composition, there is something inside of me that makes me do it.’ I have no control over it, It is entire ly an outside influence. Something, somewhere, has put that idea in my body and that idea trickles out thru my fingers to become a march, an opera, a song. “I am firmly convinced that when- ever anything must be done, there is € power that places within us the ability to do that thing.” continued Mr. Sousa. . “Such genius aS was contained in) Shakespeare, in Tennyson, in Wag- ner, in Gounod, in Thomas was placed there for the expressed. pur- pose of having that genius turned into something material like music, or lit- erature, or painting, or sculpture so CASTORIA For Infants and ‘Children In Use For Over 30 Years; the Signature of » - Voice, Piano and Expression Studio A number that can be spoiled | - that all the world could share ‘its beauty. ‘In my own humble way, the same is true. America needed an expressive music, something that was character- tistic of our nationality, our mode of living and I was choosen to put that expression into marches, It is not a amestion so much of ability as it is what some artists call ‘the divine \spark.’ Without it there would be no really great compositions.” “Government By Injunction” Has Come When Court Denies Citizen Due Judicial Process (Continued From Page One) the expression of the reasons for dis- senting, in order that the basis for the dissent may be clear, “T. dissent from the majority opin- fon and from the ultimate disposition of this case upon the grounds, first ond secondly of lack of jurisdiction in this court; and second and primarily on the ground of the improper method ot conducting the trial; OR, TO SPEAK MORE ACCURATELY UPON THE GROUND THAT NO TRIAL HAS BEEN HAD.” BUT ONE-SLENDER THREAD “Of the allegations in support of jurisdiction,” says the justice, after reviewing a number of decisions which ‘will disclose that this court has con- sistently refused to exercise its origin- al jurisdiction through prerogative writ where the questions preseuted in- volved merely ihe private rights of | relators or applicants,” “the only one} which in my judgment, which tends in the least degree to support it ig that{ with reference to the usurpations of | the powers of the public examiner} by the banking board. This may per- haps be brought to involve government- ul franchise of the state in that it’con- ( cerns the prerogatives of an oflice | tection of the public, But assuming that this allegation does not present: a sufficient cause for original jur' ciction, it does not follow that this court should make of that jurisdiction ai fact a drag-net to draw to it the en- lire controversy. It could readily de- termine the jurisdictional matter and the cause would remain for trial on the other features, if the plaintifis sbould des |the district court. \ j In other words, if] ¢ it should be determined that the bank- ing board had no authority to appoint} ceiver, then the possession by the yublic examiner is in every way legal ; 1 hut if it were determined the bank- itig..board had the authority to ap- \point a receiver, then there would re- main for consideration the question as! to who ought to have possession of the bank, pending the determination of the further issues raised by the allega- fons on one side of official miscon- duct by the banking board, the condi- tons of the bank, ete. and the denial {on the other, Upon such issues the ‘final judgment in the case would nec- essarily be based. After the deter- mination of the preliminary jurisdic- tonal qustion, then, the case resolves to one involving merely private rights, und it should be déalt with accordingly, “There Can be little doubt upon the record before this court in the present jcase that the primary purpose of this action is to redress a privaté wrong, lard that it falls directly within the class which the above authority” | (quoting a Wisconsin decision on a case which is identical) “says will not be entertained. It will be noticed that 'the judgment here provides even for the taxation of costs in favor of the so- ‘ealed relators, thus recognizing the rrivate character of the litigation.” PRACTICALY EXPEDIENCY “It is, of course, well known to the majority that applications are fre- quently made to this court where the jixembers have the gravest doubt as to whethgr the controversy justifies its in- terposition by prerogative writ, and that in such cases it has become the custom to reserve all questions of jur- isdiction. And they are also familiar with the further fact that in the great majority of such cases opposing par- lies and counsel were equally inter- estel in obtaining a decision of the questions involved and realized that’ until decided by the opinion ‘of this court three could be no satisfactory de- {termination of the matter. In such situations the cases are of no import- ance whatever as precedents for the proper “exercise of jurisdiction. BUT. |ON THE CONTRARY, THEY MAY AND DO REPRESENT ONLY THE|* EXTENT TO WHICH THIS COURT WILL GO IN THE INTEREST OF PRACTICAL EXPEDIENCY.” PANRING BOARD HAS AUTHORI- 'Y. “I have not the least doubt that the banking board, under our statutes, has authority to appoint a receiver for a bank, who, when appointed, may hold possession of the bank until he is suc- ceeded by a receiver apointed by a court or removed by the atuhority that appoints him, I disagree entirely with the majority in the construction of Ckapter 53 of the session laws of 1915, wherein they hold that chapter to re- peal by implication, those provisions of Sections 5146 and 5183, compiled Jaws of 1913, which specifically auth- orize the banking board to appoint re- ceivers.” Quoting the sections refer- red to, Justice Birdzell says: “It will be noted that all the discretion the state examiner has in such matters is to be exercised WITH THR AP- PROVAL of the banking board.” DENIAL OF JUDICIAL DUE PRO- CESS “The question of transcendant, im- portance in this case is not the ques-| tion of jurisdiction or the related mat- ter of the construction of the statute: This: case has been heard upon affi- davits, merely; and that over the pro- test of the defendants, who were all the time insisting upon their constitu- tional rights to a trial according to cue process of law ‘before the rendi- tion of final judgment, But the ma- jority denied the requests, considered the case submitted, and proceeded to render a final judgment involving the pertant. ency t] enia i created by the legislature for the pro-|f/0Cy can justify the denial of a trial ar jsuspended than rendered upon insuffi- jeient hearing. ever permissable) ers in the exercise of ex uesi-judicial powers ar e to pres the same before a ; H end opportunity shall be given to swear: and examine witnesses in thei and to Cross-examine the opposing wit- of the commission bj est offense * has measure of protection. and I know ‘of oyinion. 40 reason Why it should be denied of- on the fic uccused of the grave offense of wilful , the findings which are now~based on have searched in yain for any prece- dent for such action. My researches have failed to bring to light any case where a court of last resort has held to be proper the rendition of a final judgment based upon a trial by affi- davit had upon the return of an order} to show cause, On the contrary, it appears that the very few times such proceedings have found thelr way to spellate courts they have been prompt- ly held to be erroneous “Of course if it is proper’ practice to determine the merits of an injune- ‘on suit in this court by proof limited, over the protest of one of the parties, to affidavits, it would clearly be the proper practice in the district courts. ‘’o my mind the error is fundamental and far-reaching, It strikes at the very foundation of judicial due process of law. Can it fairly be said that a hearing at which no witnesses were} sworn in open court on behalf of the plaintiffs at which no opportunity was afforded for cross-examination of the persons whose ex parte affidavits the court takes as proof of the facts alleg- ed in the complaint and at whieh the defendants are denied the privilege ot subpoenaing witnesses in their be- half is consistent with the law of the lund. as mentioned: in Magna Charta and which with us is commonly ex- pressed as the law that ‘hears before it condemns, which proceeds upon in- qyiry. and renders judgment only after trial’? “I am sure that this court would ‘not hesitate to condemn the exercise of arbitrary power by the other depart- ments of government. and this fact af- fords a weighty reason why it should not transgress beneficent constitution- al safeguards, The legislature has not attempted to prescribe any new or dif- ferent mode of ‘trial applicable to an injunction suit than that which origin- ally obtained. This court should not’ lend its sanction to a mode of trial that could not constitutionally be pre- scribed by the legislature.” “WE KNOW NOT—” “The issues in, this case were im- We know not what the evi- No -emer tence might have been, court of justice. If an exigency s final judgement might better be I can conceive of no judicial function calling for delicacy in. its exercise than passing greater tives or even the wisdom (if this is of executive ome- cutive ; or peaking \for elf Ishall positively refuse to do so’ except after a full hearing at which behalf erally, also, sell larger “Bayer” packages, AS- ufacture of Monoaceticacidester of Sal- ieylicacid, judgment upon the good faith, the mo-jnd the fact. NAME “BAYER” ON GENUINE ASPIRIN Safely Stov Colds as Told in “Bayer Packages” 'To break up a cold in the head, neck, k, or any part of body be sure you ake only “Bayer Tablets of Aspirin” with the safety “Bayer on them, This is the genuine Aspirin, proved safe by millions and prescribed by vhysicians for over eighteen years, You must say “Bayer”—Don't mérely ask. for’ Aspirin Tablets, Then you un take them without fear, to relieve our Colds, Headache, Neuralgia, FEar- ache, Toothache, Rheumatism, Sciatica, Lumbago, Neuritis, and Pains gen- containing 12 tab- Handy ,tin bo Druggists lets cost only a few cents, pirin is the trade mark of Bayer Man- —_—_—_—_—_—_—_ ae and wanton breach of. official duty. It is no answer to say that a trial of the very issues raised by the com- plaint and the answer might of itself have the effect of inflicting irreparable injury upon the plaintiffs. If consid- erations of this character are once made ccntrolling to the extent of pré- chiding t s, then government by in junction will become the accepted rule, instead of the odious exception.” “To dispose of this case without trial on the supposition that a trial itself would deprive the plaintiffs of the benefit of a favorable decision if one were ultimately reached is of course to prejudge ther entire merits of the controversy or rather to dispose of the case as tho the merits lay all on cne side, and this without a full in- quiry as to whether such be the law “Perhaps the defendants merit the censure expressed by the majority; perhaps they have been guilty. of the matters found against them, but I can 1ot find it in my conscience to say so judicially in the absence of a trial con- ducted according to the principles of Anglo-Saxon’ jurisprudence, “So far aS the plaintiffs are con- nesses, “A man who puts state upon proof im of the slight- this constitutional elected by the people who are “Cascarets” work while you sleep! When one of you gets bilious, head achy, constipated. If the breath i bad, stomach upset, or for colds, sal- lowness, just take “Cascarets” to regu- late. the liver and bowels and all is well. by morning: Pompons Bronze, Pink and Yellow 75c per bunch The best of the season. Order n supply Come i sample POO POODOO TOC OO LOLOL TOLLE DOPOD OIPOTOOOOD OIL ODODEDOTOO OD, “. can make these attractive prices. OSCAR H. WILL & CO. ENGRAVED XMAS AND CALLING CARDS graved Christmas We are in position to and Calling: Cards. ©. Bismarck Tribune Co. cerned it is to be hoped that the con- dition of the. bank such as to justi- fy the reopening which closely follow- ed the announcement of the, majori Possibly an immediate trial merits might have given add- rance as to the correctness of ed as “Cascarets” never gripe, sicken or keep you anxious Nu next day like omel, Salts, Oil or violent Pills, ‘ascarets” are the most delightful laxative-cathartic you ‘ever experienc- ed. Switch to “Casearets"—Cost so litte! < ne Chrysanthemums White, Pink, Yéllow $1.00 and $1.50 per dozen iow while we are overstocked and Phone 163. you with En- n and see our S. gift HOLMBOE STUDIO Next Door to Grand Theater. & showing only sufficient for a prima- iujunction. ment as being void for lack of a trial conducted in accordance with due pro- cess of law.” “The final judgment should be set aside and the case should either be held in abeyance upon proper appli- cation or referred to a district court for trial on the meri aE BIRDZELL. COUNTRY CLUB MEETING The annual meeting of the Bismarck Country Club will be held at the Commercial Club rooms at 8 o’clock Monday eve- ning, November 38,1919, at which time new officers and directors} will be elected for the next year. | Also arrangements will be made for the agnual ball for New | H.S.DOBLER, | Secretary. Year’s Eve. KARL KLEIN HERE {I Karl Klein of Washburn, one of the | i i 's best known _ finan-{ spending the week-end in Bis- He reports that “King John” Real- Fruit Desserts Jiffy-Jell is favored with fruit juice essences in liquid form, in vials. A wealth of fruit juice is condensed to flavor each dessert. So it brings you true-fruit dainties, healthful and delicious, at a trifling cost. Simply add boiling water. Compare it with the old-style gelatine desserts. It will be a delightful rev- elation. Get the right kind = Jiffy Jeu 10 Flavors, at Your Grocer’s 2 Packages for 25 Cents One Night—Curtain A Julie Ring Dorothy Blackburn Carewe Blackburn ) reey: Sutterlund is considerably facie case required for a temporary |from his recent break-down, and that Viewing the matter as I, he is again at the helm of his nume- do I can only regard the final judg-|rous enterprises in and about Wash- burn. Lar ) BES “presented by AHWOODS A-HIT WITH THE PRESS HIT WITH THE PUBLIC As Full of Laughs as the Ocean Is of Salt The identical production in every particular as seen in New York at the Eltingé Theater for one whole season. Happily’ there is one of individuality and universal apprecia- tion—Your Photograph Make the Appointment today—It’s none too early Quality Photographs (Publicity Film Co.) BISMARCK AUDITORIUM Two Shows 7:30 & 9:00 Admission. . 30c and 55¢ (This includes the war tax) ee. oe Two Nights, Starting Monday, Nov. 3 MYSTERY and TH ILLS in BAYARD VEILLER'S Most Mysterious of All Mystery Plays “The 13th Chair” WHICH RAN OVER A YEAR ON BROADWAY PH EW! That’s the way e you feel when the last reel has been run and you are released from your pitch of excitement AUDITORIUM Wednesday, Nov. 5th 2h oy 8b Good Night! Lights Our ! _The Fun is On L An Incomparable Cast Including: Sager Midgley Dorothy Fox Slaytor James Norval Nicholas Judels Frederic Clayton ‘Jeanette Bageard Jos: A. Bingham improved +—— PRICES: 55c, $1.10, $1.65, $2.22 —_— ee Seats at Harris & Co.Monday... +. ORDER. YOUR SE t: p.-WA) Seven Years of Successful Teaching TA HERRINGTON RICHARDSON, Teacher Phone 5 ND decision of the issues of fact. Com- Ee Sones : rared to a denial, of judicial due pro- ad ‘ 4) cess, all other questions are as Se: ar AL